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Thread: A tale of two Counties (Henrico and Surry)

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    Regular Member Repeater's Avatar
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    A tale of two Counties (Henrico and Surry)

    Compare what happened today to Aaron B. Tobey to what happened to skidmark earlier this month:

    Charge against airport protester dropped

    A disorderly conduct charge against a young Charlottesville man who stripped to show wording from the 4th Amendment on his chest in protest of airport security procedures was dropped today in Henrico General District Court.

    The charge was not prosecuted at the request of Commonwealth's Attorney Wade Kizer and Aaron B. Tobey's lawyer, Steven D. Benjamin, who appeared before Judge Archer L. Yeatts III.

    Kizer said outside the courtroom that he did not believe Tobey's behavior rose to that required to be in violation of the disorderly conduct law. "He was looking for attention and he got it," said Kizer.

    Benjamin said, "He simply wanted to make a statement, which is his right," While "American citizens have to submit to airport security measures," said Benjamin, "we're still American citizens and we still have the right to protest."
    Observations:

    • Henrico County's Commonwealth's Attorney himself was involved, appearing in court on a misdemeanor charge, instead of allowing a subordinate to handle this.
    • Kizer himself asked the court to dismiss (nol pros) the case because the conduct for which Tobey was arrested did not rise to the level "required to be in violation of the disorderly conduct law."
    • The Surry County prosecutor (Poindexter) could have come to court and done the same thing himself - but did not.
    • Justice was served today in Henrico; justice still waits in Surry.

    As an aside, I wonder if Tobey has grounds for a lawsuit?

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    Quote Originally Posted by Repeater View Post
    Compare what happened today to Aaron B. Tobey to what happened to skidmark earlier this month:

    Charge against airport protester dropped



    Observations:

    • Henrico County's Commonwealth's Attorney himself was involved, appearing in court on a misdemeanor charge, instead of allowing a subordinate to handle this.
    • Kizer himself asked the court to dismiss (nol pros) the case because the conduct for which Tobey was arrested did not rise to the level "required to be in violation of the disorderly conduct law."
    • The Surry County prosecutor (Poindexter) could have come to court and done the same thing himself - but did not.
    • Justice was served today in Henrico; justice still waits in Surry.

    As an aside, I wonder if Tobey has grounds for a lawsuit?
    yes and defense attorney Benjamin is the other attorney i'd call after Magic Mike if i was actually guilty of something or truly in fear of going to jail. Benjamin defended the cooky lady that put her child over the fence at maymont to take a picture of him w/ the bears that ended in destruction of said bears after her precious was scratched, but it was maymonts fault for only having two fences between the idiots and the average bear.

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    Regular Member wylde007's Avatar
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    The mother should have been put down, not the bears.

    Disgraceful.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    Activist Member nuc65's Avatar
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    Quote Originally Posted by wylde007 View Post
    The mother should have been put down, not the bears.

    Disgraceful.
    +1

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    Moderator / Administrator Grapeshot's Avatar
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    Henrico - we want to do the right thing and be up front about it.

    Surry - we will do it our way, like we always have, our deals are made behind closed doors.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Grapeshot View Post
    Henrico - we want to do the right thing and be up front about it.

    Surry - we will do it our way, like we always have, our deals are made behind closed doors.
    I wouldn't hold Henrico up as a poster child just yet. While they are light years ahead of Surry, they could fertilize a small country with the skeletons in their closet.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by peter nap View Post
    I wouldn't hold Henrico up as a poster child just yet. While they are light years ahead of Surry, they could fertilize a small country with the skeletons in their closet.
    True enough, Peter, but like the light on your boat, Henrico can see where they have been. Surry, on the other hand, does not have a clue where they are going.

    Can you see the difference?
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Grapeshot View Post
    True enough, Peter, but like the light on your boat, Henrico can see where they have been. Surry, on the other hand, does not have a clue where they are going.

    Can you see the difference?
    That's a cannon, not a light
    Oops..wrong end.....

    Yes I see the difference.

    Last edited by peter nap; 01-10-2011 at 07:49 PM.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Grapeshot View Post
    True enough, Peter, but like the light on your boat, Henrico can see where they have been. Surry, on the other hand, does not have a clue where they are going.

    Can you see the difference?
    Quote Originally Posted by peter nap View Post
    That's a cannon, not a light
    But yep, I see the difference.

    Wrong end, Peter. Look at tother one. VDOT and Surry can tell where they have been, but can't see where the are going. A lighted stern section doesn't help much even in the Johnny House.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Grapeshot View Post
    Wrong end, Peter. Look at tother one. VDOT and Surry can tell where they have been, but can't see where the are going. A lighted stern section doesn't help much even in the Johnny House.
    I caught that right after I stuck my foot in my mouth Grape

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    Moderator / Administrator Grapeshot's Avatar
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    Sometime days the only time I open my mouth is to change feet.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Quote Originally Posted by peter nap View Post
    I wouldn't hold Henrico up as a poster child just yet. While they are light years ahead of Surry, they could fertilize a small country with the skeletons in their closet.
    +1000

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    Quote Originally Posted by Grapeshot View Post
    Sometime days the only time I open my mouth is to change feet.
    ?

    Posting and gun cleaning at the same time are we?


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    Regular Member VAlitigator's Avatar
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    Quote Originally Posted by Repeater View Post
    As an aside, I wonder if Tobey has grounds for a lawsuit?
    Malicious prosecution is a valid ground for a lawsuit, but they are not favored by the Virginia courts. The elements are:
    1. former prosecution was initiated or started by the defendant.
    2. former prosecution was without probable cause.
    3. former prosecution was terminated in plaintiff's favor.
    4. former prosecution was malicious (may be established by showing the original prosecution was motivated by ill will, malevolence, grudge, spite, wicked intention, or conscious disregard for rights). So, it's not enough to show the cops were bone-headed; you gotta show they were out to get you.

    His lawsuit would be against the police officers. Prosecutors have absolute liability, so they would not be the defendant (besides, in general district court cases, they bring before the court the charges the cops brought, and the CA did the right thing by dropping the charge).

    In this case, he would be better off first getting the charge expunged from his record before considering a civil lawsuit (he has 2 years to bring a civil lawsuit).

    Mark D. Matthews
    http://thematthewslawgroup.com/
    Note: Effective February 1, 2011, we have moved to 4508 S. Laburnum Ave., Suite 200, Richmond, Virginia 23231

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    Regular Member Repeater's Avatar
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    New bill would make expungement more difficult; 'Contempt of Cop' Part 2?

    Quote Originally Posted by VAlitigator View Post
    Malicious prosecution is a valid ground for a lawsuit, but they are not favored by the Virginia courts. The elements are:
    1. former prosecution was initiated or started by the defendant.
    2. former prosecution was without probable cause.
    3. former prosecution was terminated in plaintiff's favor.
    4. former prosecution was malicious (may be established by showing the original prosecution was motivated by ill will, malevolence, grudge, spite, wicked intention, or conscious disregard for rights). So, it's not enough to show the cops were bone-headed; you gotta show they were out to get you.

    His lawsuit would be against the police officers. Prosecutors have absolute liability, so they would not be the defendant (besides, in general district court cases, they bring before the court the charges the cops brought, and the CA did the right thing by dropping the charge).

    In this case, he would be better off first getting the charge expunged from his record before considering a civil lawsuit (he has 2 years to bring a civil lawsuit).

    As always here, you provide sage advice. Your suggestion for expungement is a good one. Current law is also pretty good.

    That could change.

    Delegate Todd Gilbert has introduced the ironically designated HB 1776, that's right: 1776):

    Expungement of police and court records.

    Provides that dismissed charges may not be expunged if the court found the evidence sufficient to find the person guilty, and that charges that result in a conviction for a lesser included offense or that are subject to amendment or substitution by charge or indictment resulting in a conviction may not be altered or expunged.
    Thus, if a person is arrested and the case is dismissed (a nolle prosequi), the prosecutor could still cause problems for the petitioner by insisting to the court the person could still have been found guilty.

    How many Virginia gun owners are subjected to what is known as Contempt of Cop arrests? It would appear that fighting such false charges, and then attempting to restore one's reputation, would be more difficult if this bill were to become law.

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    Regular Member VAlitigator's Avatar
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    Quote Originally Posted by Repeater View Post
    As always here, you provide sage advice. Your suggestion for expungement is a good one. Current law is also pretty good.

    That could change.

    Delegate Todd Gilbert has introduced the ironically designated HB 1776, that's right: 1776):



    Thus, if a person is arrested and the case is dismissed (a nolle prosequi), the prosecutor could still cause problems for the petitioner by insisting to the court the person could still have been found guilty.

    How many Virginia gun owners are subjected to what is known as Contempt of Cop arrests? It would appear that fighting such false charges, and then attempting to restore one's reputation, would be more difficult if this bill were to become law.
    I would bet the bill is designed to stop expungements in situations as follows (and insert any "pound of flesh" in place of community service):

    1. Accused and prosecutor agree that the accused will do community service or something else to get charge dismissed.
    2. Prosecutor allows accused to defer plea and entry of findings but requires accused to stipulate that there are facts sufficient to convict him (so if he doesn't do the service, prosecutor doesn't have to prove up the case).
    3. Court agrees.
    4. Accused does the community service.
    5. At next hearing, prosecutor and accused agree that accused has done the community service; judge dismisses charges.

    So, the charge is dropped, no plea was entered, the court entered no findings re guilt/innocense, BUT accused agreed on the record there were facts sufficient to convict him.

    Not saying I agree with the bill at all. But I could see how prosecutors could want it.
    Mark D. Matthews
    http://thematthewslawgroup.com/
    Note: Effective February 1, 2011, we have moved to 4508 S. Laburnum Ave., Suite 200, Richmond, Virginia 23231

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    Regular Member Repeater's Avatar
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    Quote Originally Posted by VAlitigator View Post
    I would bet the bill is designed to stop expungements in situations as follows (and insert any "pound of flesh" in place of community service):

    1. Accused and prosecutor agree that the accused will do community service or something else to get charge dismissed.
    2. Prosecutor allows accused to defer plea and entry of findings but requires accused to stipulate that there are facts sufficient to convict him (so if he doesn't do the service, prosecutor doesn't have to prove up the case).
    3. Court agrees.
    4. Accused does the community service.
    5. At next hearing, prosecutor and accused agree that accused has done the community service; judge dismisses charges.

    So, the charge is dropped, no plea was entered, the court entered no findings re guilt/innocense, BUT accused agreed on the record there were facts sufficient to convict him.

    Not saying I agree with the bill at all. But I could see how prosecutors could want it.
    Very nice analysis; however, I believe Virginia case law already handles "deferred" situations. My main concern would be the potential for abuse and misuse to deny justice for petitioners.

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